JWALA PRASAD Vs. SHAMA CHARAN

JUDGEMENT

(1.) THIS appeal arises out of a suit on the basis of a promissory note, dated the 13th of June, 1913. The defendant No. 1, one Shama Charan, owed money to the Kayastha Trading and Banking Corporation, Limited, Gorakhpur, and in liquidation of this debt he executed the aforesaid promissory note for Rs. 700, on the 13th of June, 1913, in favour of his creditor. THIS promissory note was payable on demand, but on the same day the executant of the promissory note wrote a letter to the Manager of the Kayastha Trading and Banking Corporation stating that the period for suing on the promissory note should be postponed for one year, within which time he promised to pay the amount due on the promissory note. The promissory note was subsequently assigned to defendant No. 3, a relation and benamidar of the plaintiff. The suit was filed on the promissory note on the 25th of November, 1916. If the period of limitation be calculated from the date of the execution of the promissory note, the suit would be barred by time; but it is argued on behalf of the appellants that the period of limitation was to run from the date of the expiry of one year after the date of the execution of the promissory note, as provided by the writing which accompanied it. THIS was the view taken by the court of first instance. But the lower appellate court was of opinion, relying on the decision in Somasundaram Chettiar v. Narasimha Chariar (1905) I.L.R. 29 Mad. 212, that the suit was barred by limitation. That Court overlooked entirely the terms of Article 73 to the Limitation Act, which specially lays down that the period of limitation begins to run on a bill of exchange or promissory note from the date of the bill or note, provided that it is not accompanied by any writing restraining or postponing the right to sue. In this case the promissory note was accompanied by a writing restraining or postponing the right to sue for one year, and, therefore, the article of the Limitation Act applicable to the suit is not Article 73, but Article 80, which provides that the period of limitation for a suit on a bill of exchange, promissory note or, bond begins to run from the date when the bill, note or bond becomes payable. In this case, therefore, the period of limitation began to run from the 18th of June, 1914, and the suit was not barred by time. The ruling referred to by the learned Additional Judge--Somasundaram Chettiar v. Narasimha Chariar (1905) I.L.R. 29 Mad. 212--was over-ruled by a full Bench decision of the same High Court in Annamalai Chetty v. Velayuda Nadar (1915) I.L.R. 39 Mad. 129. No other question was involved in this case. We accordingly allow the appeal, set aside the decree of the lower appellate court and restore that of the. court of first instance with costs in all courts.